Governance
NONPROFIT CORPORATIONSMany arts and cultural organizations in Georgia will chose to form a nonprofit corporation under Georgia law and to apply for 501(c)(3) federal tax-exemption. When considering whether to become a Georgia nonprofit corporation with federal tax-exempt status or to incorporate as a for profit corporation, you should always consult with a CPA, an attorney or a nonprofit consultant to discuss the appropriate form given your specific goals and concerns. A pdf file of relevant provisions of the Georgia nonprofit corporation code are included for review. This section includes an overview of the filing procedures for a Georgia nonprofit corporation as posted on the Georgia Secretary of State’s site. Then this section includes examples of Articles of Incorporation, nonprofit corporate Bylaws and alternate Bylaw provisions as pdf files. The last section includes an overview of the procedures to close and dissolve a nonprofit corporation. FILING PROCEDURES FOR GEORGIA NONPROFIT CORPORATIONS Corporations are formed by filing Articles of Incorporation with the Secretary of State. The minimum filing requirements of Georgia law are outlined here. Many other provisions may, and perhaps should, be included in the Articles. It is very simple to incorporate. The question of whether or not a person or entity should incorporate is complex. The Corporations Division strongly recommends that filers obtain professional legal, tax and/or business advice to assure the filer’s goals and intentions are met, and that requirements of the law are satisfied. Basic Requirements
Name Reservation. A name should be reserved before filing. You can obtain information and the name reservation at the Corporation Division website – http://sos.ga.gov/corporations/acrobat/applications/Form%20-%20Name%20Reservations.pdf . The nonrefundable filing fee is $25.00. Online filers can pay using a credit card. Online name reservation filers will receive a name reservation number valid for 30 days. Within 30 days, you may go online and incorporate using the name reservation. Name reservations cannot be renewed and expire after 30 days. You may reserve the name again for $25.00 as long as the name is available. If the requested name is not available a rejection notice will be sent (the $25.00 charge still applies) and will include instructions on submitting another request without additional charge. Preparation of Articles of Incorporation. Articles of Incorporation must include the information described in O.C.G.A. 14-3-202 (nonprofit). Articles must be submitted on white 8½ x 11 paper. An Incorporator named in the articles should sign the Articles of Incorporation. The signer should indicate in what capacity he or she is signing. Filing of Articles of Incorporation and Data Transmittal Form 227. The original and one copy of the Articles of Incorporation, a completed Transmittal Form 227, and the $100.00 filing fee should be mailed to the Corporations Division: Office of Secretary of State, Corporations Division, 315 West Tower, #2 Martin Luther King, Jr. Dr., Atlanta, GA 30334. Checks should be made payable to “Secretary of State.” Articles of Incorporation are effective on the date received by the Corporations Division unless a post-effective date is specified therein. A Certificate of Incorporation will be posted on the SOS website and emailed to the applicant within three business days. Filings that are not complete will be returned to the applicant along with a notice that describes the deficiency. If corrected and returned within 60 days the initial date of receipt will be the date of incorporation. Corporate Officers and Annual Registration. Each corporation must file an annual registration with the Secretary of State within 90 days of incorporation. The fee is $50. Registration should be filed at http://www.sos.ga.gov/corporations/. Corporations that form between October 1 and December 31 file the initial registration between January 1 and April 1 of the ensuing year. Corporate officers are provided to the Secretary of State as part of the registration. Changes to the corporate address and/or officers may be made on the annual registration. A corporation that does not submit its annual registration is subject to administrative dissolution. There is a $250 fee to reinstate an administratively dissolved corporation. Articles of Incorporation for nonprofit corporations include the same information required of profit corporations, except: 1. Articles of Incorporation for nonprofit corporations do not include a statement regarding the number of shares the corporation is authorized to issue, as set out in the example of “Article 2” above. Rather, an article must be included which states: “The corporation is organized pursuant to the Georgia Nonprofit Corporation Code.” 2. Articles of Incorporation for a nonprofit corporation must include a statement indicating whether or not the corporation will have members. For example: “The corporation will have members.” or, “The corporation will not have members.” An incorporator named in the articles, or the filing attorney, must sign nonprofit Articles of Incorporation. Note: See additional information below if the nonprofit corporation intends to pursue “tax-exempt” status under 501(c)(3) or some other provision of the Internal Revenue Code.
Publication of Notice of Intent to Incorporate. All corporations must publish a notice of intent to incorporate in the newspaper which is the official legal organ of the county where the initial registered office of the corporation is to be located, or in a newspaper of general circulation in the county and for which at least 60 percent of its subscriptions are paid. The legal organ (newspaper) for a county can be found on this site: http://www.gsccca.org/clerks/ or the Clerk of Superior Court can advise you as to the legal organ in your county. The notice of intent to incorporate and a $40.00 publication fee should be forwarded directly to the newspaper no later than the next business day after filing Articles of Incorporation with the Secretary of State. The notice should be in the following format: NOTICE OF INCORPORATION (Letter to Publisher) Dear Publisher: Please publish once a week for two consecutive weeks a notice in the following form: Notice is given that Articles of Incorporation that will incorporate (Name of Corporation) have been delivered to the Secretary of State for filing in accordance with the Georgia Business Corporation Code (or Georgia Nonprofit Corporation Code). The initial registered office of the corporation is located at (Address of Registered Office) and its initial registered agent at such address is (Name of Registered Agent). Enclosed is (check, draft or money order) in the amount of $40.00 in payment of the cost of publishing this notice. Sincerely, (Authorized signature) ANNUAL REGISTRATION The annual corporation registration form can be found and completed online at the Secretary of State’s web site: http://www.sos.ga.gov/corporations/ APPLICATION FOR TAX EXEMPTION UNDER SECTION 501(c)(3) Note to nonprofit corporations that will pursue “tax exempt” status: Nonprofit corporations are not automatically tax exempt under Section 501(c)(3) or other sections of the IRS Code by filing Articles of Incorporation with the Georgia Secretary of State. Generally, nonprofit corporations must file an Application for Recognition of Exemption to request exempt status. Additional information to that required by the Secretary of State will be required in the Articles of Incorporation. Examples of the information are provided in IRS Publication 557. The Publication, the applications and exemption information are found at http://www.irs.gov/formspubs/index.html , or by calling the IRS. A nonprofit corporation that wishes to be tax exempt and that does not include this information initially will be required by the IRS to file an amendment to the Articles of Incorporation. IRS Publication 557 should be reviewed before incorporation if a nonprofit corporation wishes to be “tax exempt.” Tax forms 1023 (Application for exemption) and SS-4 (EIN form) can be obtained from the IRS. Also helpful regarding exemption: http://www.irs.gov/pub/irs-pdf/p4220.pdf Professional legal and/or tax advice should be obtained regarding what material may or should be included in the articles of a nonprofit corporation that wishes to be tax exempt. The Georgia Office of Secretary of State cannot offer advice in this regard. OTHER IMPORTANT INFORMATION FOR NONPROFIT CORPORATIONS ● An Employee Identification Number will be needed. It is obtained from the Internal Revenue Service by filing Form SS-4. Call 1.800.829.4933 or visit the IRS web site. ● The Georgia Department of Revenue should be contacted regarding compliance with state tax laws. Sales and withholding tax information may be obtained at the DOR’s web site, https://dor.georgia.gov/withholding-tax-information . ● Many corporations will be required to obtain workers’ compensation insurance. Workers’ compensation information may be obtained at http://sbwc.georgia.gov/portal/site/SBWC/ . ● Many corporations will be subject to unemployment tax requirements of the “Georgia Employment Security Law.” Information may be obtained from the Georgia Department of Labor at (404) 656-5590 or http://www.dol.state.ga.us . ● Nonprofit corporations that will be soliciting or accepting contributions in Georgia should contact the Charitable Organizations section of the Office of Secretary of State at 802 West Tower, #2 Martin Luther King, Jr. Drive, Atlanta, GA 30334 to determine if additional registration is required by law. •A business license may be required for your municipality or county. This question should be directed to your CPA or the local government agency responsible for issuing a business license if it is necessary. EXAMPLES OF CORPORATE FORMS FOR NON PROFIT INCORPORATION Articles of Incorporation – Example This is an example of Articles of Incorporation which would be filed with the Georgia Secretary of State to incorporate a community arts agency pursuant to the Georgia Nonprofit corporation code. Legal advice and the services of an experienced attorney are recommended. Non Profit Bylaws – Example This is an example of Bylaws for a community arts agency. Optional Bylaw Provisions – Examples These optional provisions in the Examples pdf respond to changes in the field as well as to the need for adoption of best practices by local arts agencies and arts nonprofits. Existing nonprofits are encouraged to review and consider these optional provisions to update their current bylaws by complying with the existing procedure for amendment, or the optional provisions can be included in the initial bylaws when a new organization is incorporated. Article X. Purposes DISSOLVING A CORPORATIONHow is a corporation dissolved? A nonprofit corporation can be administratively dissolved by the Secretary of State for failure to file an annual registration and pay the fee (OCGA 14-3-1420 to 1423) judicially dissolved if there is a dispute (OCGA 14-3-1430 to1433, and can be voluntarily dissolved by filing Articles of Dissolution. The applicable Georgia code sections are 14-3-1401 to 1410. Dissolution is more complex than incorporation, and thus the Corporations Division strongly recommends that filers obtain professional legal, tax and/or business advice to assure the filer’s goals and intentions are met, that requirements of the law are satisfied, and that the shareholders, officers and directors are protected even after the dissolution. In particular, there are options to consider regarding what should be included when publishing the notice of intent to dissolve, and its effect on the disposition of potential claims against the dissolved corporation and the persons involved in it. See O.C.G.A. 14-3-1404 and 14-3-1407. There are two different procedures for dissolution. The one to be followed is determined by whether or not the corporation has commenced business: A corporation that has not commenced business may dissolve by filing Articles of Dissolution pursuant to O.C.G.A. 14-3-1401. The articles must state: Any currently due annual registrations must be filed before the corporation can be dissolved. The Articles of Dissolution must be signed by either the chairman of the board of directors, an officer, a receiver or trustee if one has been appointed by a court, or the attorney for the corporation. The signer should state the capacity in which he or she is signing. The signature need not be notarized. There is no filing fee for Articles of Dissolution. The original and one copy of the Articles of Dissolution should be mailed to: Corporations Division, 315 West Tower, #2 Martin Luther King, Jr. Drive, Atlanta, GA 30334. The effective date of the dissolution is the date the articles are received by the Secretary of State unless a post-effective date is specified in the articles. Documents are usually reviewed and a Certificate of Dissolution returned to the applicant within three business days of receipt of the filing. If articles do not comply with requirements of the Georgia Business Corporation Code they will be returned to the filer for correction. If corrected and returned, the date of dissolution will be the date the articles were initially received. The Notice of Intent to Dissolve and the Articles of Dissolution must be filed as separate documents, but can be filed at the same time. NOTICE OF INTENT A corporation that has commenced business may dissolve by filing a Notice of Intent to Dissolve pursuant to O.C.G.A. 14-3-1404 and Articles of Dissolution pursuant to O.C.G.A. 14-3-1409. After approval of the dissolution the corporation shall deliver a Notice of Intent to Dissolve to the Secretary of State. The notice must state: *The statement regarding publication can be provided in a letter or other document filed with the notice of intent to dissolve, rather than being placed in the notice. The statement must also be signed. FILING FEE There is no filing fee for the notice of Intent to Dissolve. The corporation shall mail or deliver a “publication notice” to the legal organ of the county of the corporation’s registered office. See O.C.G.A. 14-3-1403.1 regarding preparation and delivery of the notice. A corporation may dissolve by filing Articles of Dissolution pursuant to O.C.G.A. 14-3-1408 after its Notice of Intent to Dissolve is filed as specified above (if the notice was not subsequently revoked) and when all known corporate debts, liabilities and obligations have been paid or adequate provision therefore has been made. ARTICLES OF DISSOLUTION The Articles of Dissolution must state: Links to forms on the Secretary of States website: Articles of Dissolution Notice of Intent to Dissolve Examples of forms for dissolution (listed below) are here: Director’s Consent for Dissolution |
